elderly.[15] Of the three, only the clause dealing with helping the
needy contains the mandatory “shall,” although it then gives the
Legislature the discretion to determine “from time to time” how
the help to those it classifies as needy is to be provided. There is
no discretion, however, in the statement, “The legislature shall
provide for the maintenance and support of a system of free
common schools, wherein all the children of this state may be
educated” (article XI, § 1). The only discretion is in the hands of
parents who do not have to send their children to public schools.
Since education is the most important responsibility of the State,
it follows, a priori, that building schools that provide children with
a sound education is more important than building jails to
incarcerate criminals, shelters to house the homeless, and low
income housing for the poor. This order of priorities recognizes
that a child who has an opportunity for a sound education is less
likely to become a criminal or be homeless.
Sound Basic Education Equals A High School Education
Throughout this litigation, the State has ferociously clung to the
argument that a sound basic education consists of the ability to
read, write, and do math at a rudimentary level.[16] Since these
skills are generally acquired by the eighth or ninth grade, the
State then argues that this is the constitutional minimum.[17] The
view of the State is essentially that of the concurring opinion of
Judge Levine in Campaign for Fiscal Equity v State ([ CFE I], , 86
NY2d 307 (/nyctap-cgi/nyctap.cgi?86+307), 316 [1995]), who
concluded that “what legitimately might be called an education
are the basic literacy (reading and writing) and computational
skills and, in a public educational system, citizenship awareness.
A public educational system failing to provide the opportunity to
acquire those basic skills would not be worthy of that appellation”
(id. at 331). Judge Levine disagreed with the holding of the
majority that a sound “education should consist of the basic
literacy, calculating, and verbal skills necessary to enable children
to eventually function productively as civic participants capable of
voting and serving on a jury” ( id. at 316). The majority in CFE I
also stated that this definition did not “definitively specify what
the constitutional concept and mandate of a sound basic
education entails,” which would take place “after discovery and
development of a factual record” ( id. 317). At this point, the
discovery has taken place, and the factual record has been
developed.
The record establishes what would strike many as an obvious
truth: A high school education is today as indispensable as a
primary education was in 1894.[18] Children in the 21st century
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